[Plaintiff, Appellee]
[Plaintiff, Appellant]
[Defendant, Appellant and Appellee] Hyundai Motor Company (Attorneys Son Ji-yeol and 7 others, Counsel for the defendant)
[Judgment Below] Seoul High Court Decision 2007Na56977 decided November 12, 2010
[Order]
All appeals are dismissed. Of the costs of appeal, the portion arising between Plaintiffs 1, 2, 3, and 4 and the Defendant shall be borne by the Defendant, and the portion arising between Plaintiffs 5, 6, and 7 and the Defendant shall be borne by Plaintiffs 5, 6, and 7.
[Reasoning] The grounds of appeal (including the descriptions in the Defendant's respective supplementary briefs on the grounds of appeal, etc., which were submitted after the expiration of the period for submitting the grounds of appeal, to the extent they supplement the grounds of appeal) are examined as follows.
1. As to the grounds of appeal of Plaintiffs 5, 6, and 7
A. In order for a person who is employed by an original employer and performs the business of a third party at the third party's place of business to be deemed an employee of the third party, it must be the case that the original employer lacks independence as a business owner or lacks such independence that it can be equated with a labor dispatch agency of the third party, such that its existence is merely formal and nominal, and that the employee concerned is in fact in a subordinate relationship with the third party, and the party who substantially pays wages is the third party, and the counterparty to whom the labor is provided is also the third party, such that it can be evaluated that an implied employment contract relationship has been established between the employee concerned and the third party (see, e.g., Supreme Court Decision 2008Du4367 decided July 22, 2010).
The court below determined that it could not be concluded that an implied employment contract relationship had been established between the above Plaintiffs and the Defendant, on the grounds that it did not appear that the Defendant's in-house subcontracting company had failed to exercise the rights and obligations of an employer with respect to its employees such as the above Plaintiffs, and that there was no concrete evidence to acknowledge that the Defendant directly intervened in the in-house subcontracting company's exercise of personnel authority and disciplinary authority over its employees, such that it could not be said that the in-house subcontracting company's existence was so formal and nominal as to be regarded as lacking independence as a business owner or having lost its independence.
Examining the record in light of the legal principles set forth above, the above determination of the court below is justified, and there is no error therein, such as a misunderstanding of the legal principles regarding the status of an employer in an employment contract or the establishment of an implied employment contract relationship, as alleged in the grounds of appeal.
B. Pursuant to Article 2, Subparagraph 1 of the Act on the Protection, etc. of Dispatched Workers (파견근로자보호 등에 관한 법률, hereinafter referred to as the "Dispatch Act"), worker dispatch means that a dispatching business owner, after employing a worker, causes the worker, while maintaining the employment relationship, to work for the using business owner under the direction and supervision of the using business owner in accordance with the terms of the worker dispatch contract.
Meanwhile, the former Dispatch Act (before the amendment by Act No. 8076 of December 21, 2006, hereinafter the same) provided, in the main text of Article 6(3), that "where a using business owner continuously uses a dispatched worker for more than two years, the using business owner shall be deemed to have employed the dispatched worker from the day following the date on which the two-year period expires" (hereinafter referred to as the "deemed direct employment provision"). Since this deemed direct employment provision is not limited in its application to lawful worker dispatch only (see, e.g., Supreme Court en banc Decision 2007Du22320 decided September 18, 2008), it may be said that even in the case of unlawful worker dispatch, where the using business owner continuously uses the dispatched worker for more than two years, a direct employment relationship is formed between the using business owner and the dispatched worker from the day following the date on which the two-year period expires; however, it cannot further be interpreted that, merely because the worker dispatch is unlawful, a direct employment relationship is immediately established between the using business owner and the dispatched worker regardless of whether the two-year period has elapsed, unlike in the case of lawful worker dispatch. Therefore, the argument in the grounds of appeal, to the effect that since the work performed by the above Plaintiffs constituted a direct production process work in the manufacturing industry excluded from the subject of worker dispatch under Article 5 of the former Dispatch Act, and thus constituted unlawful dispatch, the status of the above Plaintiffs as employees of the Defendant should be recognized from the point in time when they began to provide labor for the Defendant regardless of whether they worked for more than two years, cannot be accepted.
2. As to the grounds of appeal of the Defendant
A. Where an original employer causes a certain worker to perform work for a third party, whether such a legal relationship constitutes worker dispatch subject to the Dispatch Act as described above should not be determined by being bound by the name or form of the contract attached by the parties, but should be determined based on the substance of the employment relationship, taking into account such factors as: whether the third party directly or indirectly gives binding instructions to the worker concerned regarding the performance of the work itself, thereby exercising substantial direction and supervision; whether the worker concerned can be viewed as having been substantially incorporated into the third party's business, such as by being organized into a single working group together with the third party's employees and performing joint work directly with them; whether the original employer independently exercises the authority to decide on matters such as the selection of workers to be assigned to the work, the number of workers, education and training, working and rest hours, leave, and checking of work attitudes; whether the purpose of the contract is fixed as the performance of a work with a specifically limited scope, and whether the work undertaken by the worker concerned is distinguished from the work of the third party's employees and has expertise or technicality; and whether the original employer possesses an independent business organization or facilities necessary to achieve the purpose of the contract.
B. The court below, after comprehensively examining the evidence it adopted and finding the facts as indicated in its judgment, determined that it was reasonable to view Plaintiffs 1, 2, 3, and 4 as having been in a worker dispatch relationship whereby, after being employed by the in-house subcontracting company, they were dispatched to the Defendant's work site and directly directed and supervised by the Defendant, considering the following circumstances comprehensively: that the Defendant held general authority to assign and change the work assignments of the in-house subcontracting company's employees, and determined the amount of work, work methods, work order, work speed, work location, and working hours to be performed by the in-house subcontracting company's employees; that the Defendant directly directed the in-house subcontracting company's employees or gave specific work instructions through the in-house subcontracting company's on-site managers, and even where the in-house subcontracting company's on-site managers, etc. exercised specific direction and supervision authority over their employees, this was merely a transmission of matters decided by the Defendant or such direction and supervision was merely controlled by the Defendant; that the in-house subcontracting company's employees were assigned to the same team as the Defendant's employees and performed the same work; that when a vacancy arose among the Defendant's employees, the Defendant had the in-house subcontracting company's employees fill such vacancy; that the Defendant substantially managed the in-house subcontracting company's employees by determining matters such as the granting of rest hours, overtime and night work, and the operation of shift systems for the in-house subcontracting company's employees, and by ascertaining the attendance status, etc. of the in-house subcontracting company's employees through the in-house subcontracting company; that part of the work subcontracted to the in-house subcontracting company was identical to the work of the Defendant's employees and was not clearly distinguished therefrom; that the in-house subcontracting company did not have its own distinct and specific work, but rather the in-house subcontracting company's work was specifically determined according to the Defendant's needs; and that the work undertaken by the in-house subcontracting company's employees consisted of simple repetition of the same tasks in accordance with various assembly work instruction sheets, etc. prepared and provided in advance by the Defendant, requiring neither the in-house subcontracting company's specialized technology nor the employees' skill, and involving no input of the in-house subcontracting company's own technology or capital.
The court below then determined that, although the direct production process work of the manufacturing industry, such as that undertaken by the above Plaintiffs, is excluded from the subject of worker dispatch under Article 5 of the former Dispatch Act, the deemed direct employment provision applies even in the case of such unlawful worker dispatch, and thus, Plaintiff 1 from May 25, 2003, Plaintiff 2 from February 14, 2002, Plaintiff 3 from August 1, 2002, and Plaintiff 4 from August 5, 2002 — each being the day following the expiration of two years from the date of dispatch to the Defendant — were deemed to have been directly employed and thus attained the status of employees of the Defendant.
Examining the record in light of the legal principles set forth above, the above determination of the court below is justified, and there is no error therein, such as exceeding the limits of the principle of free evaluation of evidence in violation of the rules of logic and experience, or misunderstanding the legal principles concerning the requirements for worker dispatch or the criteria for distinguishing it from in-house subcontracting, the contracting party's right to give instructions, and the burden of proof, or failing to exhaust necessary deliberation in violation of the duty to clarify, or containing contradictions in the reasoning or failing to state reasons, as alleged in the grounds of appeal.
3. Conclusion
Therefore, all appeals are dismissed, and of the costs of appeal, the portion arising between Plaintiffs 1, 2, 3, and 4 and the Defendant shall be borne by the Defendant, and the portion arising between Plaintiffs 5, 6, and 7 and the Defendant shall be borne by Plaintiffs 5, 6, and 7. This judgment is rendered as set forth in the Order by the unanimous opinion of the Justices participating in the decision.
Justice Lee In-bok (Presiding Justice), Kim Yong-deok, Ko Young-han (Justice in Charge), Kim So-young